Virginia Injury Lawyers Blog

July 13, 2016

Court Declines to Extend Government Liability in Fatal Motorcycle Accident Case

Generally speaking, governments and government agencies are immune from personal injury lawsuits. However, there are several very important exceptions. First, a government can always consent to be named in a lawsuit if, for example, it believes that doing so is in the best interest of the public. There are also some situations in which a government can statutorily waive immunity, meaning that the legislature determines, in advance, when governments should be held liable, and it can codify these situations in various state statutes.

Another method of getting around government immunity is showing that the allegedly negligent act was a “ministerial” task, rather than a “discretionary” one. To be sure, the distinction between ministerial and discretionary tasks can be slight and is often confusing. But at its most basic level, the difference between the two is that a discretionary task is one that the government can decide how to carry out. A ministerial task is one that is routine and leaves the government no discretion in how to carry out the task. A recent case illustrates the distinction.

Mississippi Transportation Commission v. Adams

Adams passed away after crashing his motorcycle on a Mississippi highway that was under construction. According to the court’s written opinion, Adams accidentally entered a construction zone and then, as he attempted to exit the zone, lost control on some uneven pavement. His estate filed a wrongful death lawsuit against the government agency in charge of maintaining the highway. The allegation was that the road lines leading up to the construction zone were confusing to motorists, permitting them to enter the zone inadvertently.

July 6, 2016

West Virginia Supreme Court Reverses Lower Decision Granting Accident Plaintiff a New Trial

by Sidney Schupak, Esq.

The Supreme Court of Appeals of West Virginia recently released an opinion overruling a lower court’s decision granting a rear-end accident plaintiff a new trial on the issue of a knee injury that he had allegedly suffered as a result of the defendant’s negligence. The plaintiff had been awarded a jury verdict for some of the injuries he suffered in the accident, although the jury declined to attribute his knee injury to the crash, instead appearing to accept the defendant’s argument that the knee injury was the result of a previously existing condition unrelated to the accident. As a result of the state high court’s ruling vacating the new trial order, the plaintiff will be unable to receive compensation for his claim for damages resulting from the knee injury.

The Defendant Admitted Fault for the Accident that Injured the Plaintiff

The plaintiff in the case of Harnish v. Corra was struck from behind by a vehicle driven by the defendant as he waited to turn into his place of employment. According to the facts discussed in the recent appellate opinion, the plaintiff alleged to have suffered injuries to his neck, back, and knee in the collision. The defendant admitted he was at fault for the crash, but after the plaintiff filed a personal injury claim against him, the defendant denied that the plaintiff’s alleged knee injuries were caused by the accident.

Evidence at Trial Showed a Dispute as to the Cause of the Plaintiff’s Knee Injury

At a trial on the plaintiff’s personal injury claim, the plaintiff presented the testimony of the doctor who performed a knee surgery after the accident. The plaintiff’s expert opined that his knee injury was the result of a condition that was aggravated by the car accident. In response, the defendant called a medical expert to testify that the plaintiff’s knee injury was caused by long-term wear and tear, and it was not directly related to the accident. After the close of evidence, the jury awarded the plaintiff damages for his neck and back injuries but declined to award any damages based on his knee injury. The plaintiff then requested a new trial, arguing that the jury’s verdict was unsupported by the evidence that the car accident aggravated his knee condition, whether it existed before the crash or not. The trial court granted the plaintiff a new trial.

June 29, 2016

State Supreme Court Orders New Trial in Slip and Fall Case

by Sidney Schupak, Esq.

The Supreme Court of Iowa recently released a decision to vacate a jury verdict in favor of the plaintiff in a premises liability case filed by a woman who fell on a patch of ice on the defendant’s property. The appellate court found that the district court improperly instructed the jury and ordered a new trial on the plaintiff’s claim. Although the plaintiff will not receive the damages she was awarded at the first trial, she may still receive compensation for her loss based on the recent appellate ruling.

The Plaintiff Slips on an Ice Patch and is Injured in Front of a Hotel

The plaintiff in the case of Alcala v. Marriott International was a woman who was traveling on business and staying at a hotel that was operated by the defendant. On the morning of January 21, 2010, she slipped and fell while exiting the hotel en route to her client’s office, breaking her ankle. The plaintiff later filed a premises liability case against the defendants, presenting several theories of liability that could require judgment in her favor. After a trial in which evidence was presented concerning the weather conditions on the day of the accident, the defendant’s training of their employees, and private and non-mandatory industry standards for slip resistance and snow and ice removal, the jury returned a verdict holding the defendant 98% responsible for the plaintiff’s injuries.

The Defendant Appeals the Verdict, Alleging Improper Jury Instructions Were Given

After the verdict was reached, the defendant appealed for a new trial, arguing that the jury was given improper instructions that made the verdict legally inappropriate. Specifically, the defendant argued that the jury should not have been permitted to base their verdict upon the theory that the defendant had negligently trained their employees, since the plaintiff submitted no evidence to demonstrate what type of training would meet the standard of care. Furthermore, the defendant argued that the jury was improperly instructed as to the applicability of private industry safety standards regarding slip resistant materials.

June 22, 2016

State Court Reverses Verdict for Plaintiff Due to Incomplete Negligence Claim

by Sidney Schupak, Esq.

A West Virginia court recently released an opinion in which it reversed a jury verdict that had awarded the plaintiff nearly $70,000 in medical expenses and lost wages for injuries he suffered because of the alleged negligence of the defendant. Since the high court reversed the lower court’s decision not to award a directed verdict to the defendant in the case, the plaintiff will ultimately not be compensated for the alleged negligence of the defendant.

The Plaintiff Is Injured Falling Down a Hill after Leaning on an Unsafe Fence Post

The plaintiff in Wheeling Park Commission v. Dattoli filed a negligence lawsuit against the defendant for injuries sustained after he fell down a steep hill when he leaned on a broken fence at a park that was being operated by the defendant. The plaintiff claimed that the defendant had a duty to keep the fence in reasonable condition to prevent such accidents from occurring.

At trial, the plaintiff called the park operations director as a witness to testify that the fence failed as a result of the wood decaying, and the witness could not show any maintenance or repairs to the fence prior to the accident. After the trial, the jury awarded a verdict to the the plaintiff to compensate him for the medical expenses that he incurred treating his injuries, as well as for lost wages based on his recovery.

June 15, 2016

Court Rules that School Bus Passenger Is Covered by Insurance in Accident While Boarding the Bus

by Sidney Schupak, Esq.

The Supreme Court of the State of Delaware recently affirmed a lower court’s decision that allowed a school bus passenger to make a claim against the insurance covering the school bus after the plaintiff was hit by another vehicle while crossing the street to board the bus. The lower court ruling was opposed by the insurance company, which argued that the school bus was not directly involved in the accident, and the plaintiff’s injuries should not be covered.

Plaintiff Is Injured After Vehicle Fails to Stop for School Bus

The plaintiff in the case of Buckley v. State Farm was a girl who had intended to ride the bus to school when she was hit by another vehicle and injured. Before the crash, the school bus driver operated the equipment signaling other drivers to yield to crossing children and signaled the plaintiff to cross the street. As the plaintiff was crossing the street to board the bus, a driver failed to yield and struck the plaintiff, causing injuries. Although the school bus driver was not alleged to have been at fault for the accident, the plaintiff made a claim against the bus’ insurance coverage to compensate her for the injuries she sustained.

The Plaintiff’s Personal Injury Protection Claim Is Denied

The plaintiff made a claim against the defendant, who provided insurance coverage for the school bus under the Personal Injury Protection (PIP) coverage on the bus. Personal Injury Protection coverage is designed to cover any passengers of the insured vehicle, as well as any other person injured in an accident involving the covered vehicle, other than an occupant of another vehicle. State Farm denied the plaintiff’s initial claim, responding that her injuries were not caused by an accident involving the school bus for which they were providing insurance.

June 6, 2016

Bar Owner Held Not Liable for Parking Lot Accident After Kicking At-Fault Driver Out of Bar

by Sidney Schupak, Esq.

Earlier this month, the Nebraska Supreme Court issued a written opinion in a premises liability case that highlights the importance of one of the key elements in almost every personal injury case. In the case, Pittman v. Rivera, the plaintiff was injured when he was struck by a car driven by a man who was very recently kicked out of the defendant’s bar. The court ultimately ruled in favor of the defendant, finding that it was not reasonably foreseeable that the at-fault driver would go on to cause an accident after being denied re-admittance to the establishment.

Pittman v. Rivera: The Facts

Rivera was kicked out of the defendant’s bar after he became aggressive with his girlfriend, an employee of the establishment. After Rivera was escorted out, a friend acted as a designated driver and took Rivera home. However, a few hours later, Rivera returned and tried to get back into the bar to speak with his girlfriend. The bar’s bouncer did not let Rivera in. Rivera then angrily got into his car, revved his engine loudly, and began driving around the bar’s parking lot in a reckless manner.

Pittman was also in the defendant’s bar that evening. At some point in the evening, Pittman stepped outside to speak with a few friends. As he stood in the bar’s parking lot, Rivera came whizzing around after making a series of U-turns and struck Pittman. As a result of the collision, Pittman suffered serious injuries and filed this lawsuit against the bar.

May 23, 2016

Product Liability Lawsuit Against Under-Ride Guard Manufacturer Results in Million-Dollar Verdict

by Sidney Schupak, Esq.

Earlier this month, the United States Court of Appeals for the First Circuit issued an opinion affirming a product liability plaintiff’s jury verdict in the amount of $1,200,000. In the case, Quilez-Velar v. Ox Bodies, Inc., the court determined that the lower court properly admitted the plaintiff’s expert witness testimony and that the jury’s verdict should stand.

The Facts of the Case

The plaintiffs in the case were the surviving family members of a woman who was killed when her car slid under a garbage truck that had not been properly fitted with a safe under-ride guard, which was supposed to prevent vehicles from sliding under the rear of the truck in the event of this type of accident. The evidence at trial showed that the truck was owned and operated by the local government, but the under-ride guard was manufactured by the defendant. The plaintiffs filed a lawsuit against the manufacturer of the guard only and did not proceed against the government.

At trial, the plaintiffs had an accident reconstructionist testify that he knew of an alternate design that “would have been [a] safer design in the instant accident.” The defendant admitted that the expert was properly qualified as an accident reconstructionist, but it challenged the expert’s testimony, arguing that he did not conduct the necessary tests to be qualified as an expert on the subject. The trial court reviewed the expert’s report and determined that his “conclusions are well-explained, and its use of crash-test data appears appropriate.” The court also explained that the defendant did not adequately explain why the expert should have conducted additional tests. The judge admitted the expert’s testimony.

May 16, 2016

Slip-and-Fall Plaintiff’s Case Dismissed for Failure to Comply with Procedural Notice Requirement

by Sidney Schupak, Esq.

Earlier last month, a Maine appellate court issued a written opinion affirming the dismissal of a plaintiff’s case after it was established that the plaintiff did not comply with the notice requirement contained in a relevant statute. In the case, Deschenes v. City of Sanford, the plaintiff provided oral but not written notice of his intent to file a lawsuit. The court determined that oral notice did not count as “substantial compliance” with the rule, and it affirmed the case’s dismissal.

The Facts of the Case

The plaintiff was visiting city hall to obtain information on how he could get a copy of his daughter’s birth certificate. While he was there, he tripped on some raised tread on a step and then fell down the flight of stairs. When he reached the bottom, he slid into a glass door, exacerbating his injuries.

After the man’s fall, city employees on the scene provided him with some basic first-aid until emergency responders arrived. Afterwards, the man was taken to the hospital and treated for his injuries. Before he left, he told emergency responders that he had tripped on some raised tread on the stairs.

May 11, 2016

Workplace Accidents in Virginia

by Sidney Schupak, Esq.

When an employee is injured while on the job, the most common remedy is workers’ compensation. In fact, in most cases of Virginia workplace injuries, workers’ compensation will be the sole means by which the injured employee can recover compensation. This can, and often does, act to limit a negligent employer’s liability in the case of the serious injury or death of one of its employees.

However, workers’ compensation may not be the only remedy that an accident victim can pursue. For example, if the employer has not properly set up and paid for workers’ compensation insurance, the company may not be covered under the program. Alternatively, if the negligent act resulting in the worker’s injuries was not the fault of the employer, the injured employee may be able to file a claim against the at-fault party, even if the injured party was at work at the time the injury occurred.

A Recent Example of a Nearly Non-Compliant Employer

In a recent case out of Utah brought by an employee against his employer, the lower court found that the employer was not covered by workers’ compensation. In the case, Nichols v. Jacobsen, the plaintiff was injured while disassembling some scaffolding at a work site. He filed a traditional negligence lawsuit against his employer. The employer asked the court to dismiss the lawsuit, based on the fact that workers’ compensation was the employee’s sole remedy, and the employee had failed to pursue it.

May 3, 2016

Car Accident Victim’s Award Upheld after Government’s Appeal

by Sidney Schupak, Esq.

Earlier this month, the Nebraska Supreme Court issued an opinion in a personal injury case brought against a local government, alleging that the negligence of a government employee resulted in the plaintiff’s injuries. In the case, Moreno v. City of Gering, the government admitted that its employee was at fault in the accident, but it contested the amount of damages sought by the plaintiff. Thus, the case proceeded to trial on the damages issue only.

The Facts

The plaintiff was injured after she was ejected from a bus. Apparently, the woman was riding in a county bus when a volunteer fire-fighter negligently struck the bus. After a trial in front of a judge, the plaintiff was awarded about $575,000. Some of the damages award was designated to cover the cost of a surgery the plaintiff underwent after the accident.

Government Immunity Can Be Waived

Government immunity acts to protect state and local governments from liability in some situations. However, even if a government is entitled to immunity, that government will not necessarily assert its immunity to prevent the plaintiff’s recovery. In some cases, as was the case above, the government recognizes that an employee’s negligence resulted in harm to a member of the public, and the government wants to make things right.